Principles of Constitutional Construction
Constitutional interpretation, or constitutional construction, the term more
often used by the Founders, is the process by which meanings are assigned to
words in a constitution, to enable legal decisions to be made that are justified
by it. Some scholars distinguish between "interpretation" — assigning meanings
based on the meanings in other usages of the terms by those the writers and
their readers had probably read, and "construction" — inferring the meaning from
a broader set of evidence, such as the structure of the complete document from
which one can discern the function of various parts, discussion by the drafters
or ratifiers during debate leading to adoption ("legislative history"), the
background of controversies in which the terms were used that indicate the
concerns and expectations of the drafters and ratifiers, alternative wordings
and their meanings accepted or rejected at different points in development, and
indications of meanings that can be inferred from what is not said, among other
methods of analysis.
There is also a question of whether the meanings should be taken from the public
meanings shared among the literate populace, the private meanings used among the
drafters and ratifiers that might not have been widely shared, or the public
legal meanings of terms that were best known by more advanced legal scholars of
the time. Most of the U.S. Constitution appears to have been written to be
understood by ordinary people of that era, although people then were much more
literate in the law than people are now. However, many of its words and phrases
are fairly deep legal terms that were only well understood by a few of the
legally educated Founders, even though the general population probably had a
rudimentary understanding of them.
There is a problem with the "original public meaning" formulation, because while the meanings of constitutional terms were "public" in the sense that they were not "private" or "secret", they were not necessarily familiar to ordinary people of the era. More accurate would be "legally educated and still learning public meaning", because many of the Founders themselves used terms that they had to research to find the meanings of. An example of this can be seen in the comments by Dickenson in the Federal Convention Aug. 29, 1787, about ex post facto only applying to criminal cases, after researching the topic in Blackstone's Commentaries. So since we can presume the Founders mostly agreed on the writers they considered authoritative on legal usages, we can reasonably refer to the writings of those other writers to find the meanings the Founders intended even if the Founders themselves had not yet done the research to fully master the concepts.
For constitutional terms the denotata are not empirical objects so much as ideas, that is, mental models, that do not, for the most part, have the advantage of some formal scientific models of being representable in mathematical or computer formalisms that we can examine externally. In particular, they are ideas that existed in the minds of persons long dead, so we have to develop mental models of their mental models ("theory of mind") based on the things they read and wrote. That can be done. The verification comes with being able to predict what one of them will say in a writing one hasn't read yet. Becoming adept at doing so can reassure one that one has "gotten into their heads". But that is not something one can demonstrate to others.
This leads to the admonition that the English used in the Constitution and other
legal documents of the 18th century should be read as a foreign language,
putting aside today's meanings of what seem to be the same words we use today,
and attempting to decode the meanings from various clues we can find. This is
not only wise for 18th century English, but for almost any communications, even
among people who communicate with one another daily, because no two people mean
precisely the same thing by the same words on every occasion. When both speaker
and listener are alive they are able to interrogate one another to arrive at a
common meaning, but when the author is dead we have to find evidence in other
things he or his correspondents wrote.
Constitutional controversies are about whether an official act is consistent with, and authorized by, a constitution or constitutional statute or court decision. Since a constitution is a law, and the supreme law within its domain, and authorizes statutes and other official acts which have a textual expression, the principles of constitutional interpretation are essentially the same as the principles of statutory or judicial interpretation.
Most legal scholars recognize seven main methods of judicial decisionmaking:
textual, historical, functional, doctrinal, prudential, equitable,
and natural, although they may differ on what each includes, and
there is some overlap among them.
1. Textual. Decision based on the actual words of the written
law, if the meaning of the words is unambiguous. Since a law is
a command, then it must mean what it meant to the lawgiver,
and if the meaning of the words used in it have changed since it
was issued, then textual analysis must be of the words as
understood by the lawgiver, which for a constitution would be
the understanding of the ratifying convention or, if that is
unclear, of the drafters. Some Latin maxims: A verbis legis
non est recedendum. From the words of the law there is not
any departure. 5 Coke 118. Noscitur �sociis. Meaning of
words may be ascertained by associated words. 3 T.R. 87.
2. Historical. Decision based less on the actual words than on
the understanding revealed by analysis of the history of the
drafting and ratification of the law, for constitutions and
statutes, sometimes called its legislative history, and for judicial
edicts, the case history. A textual analysis for words whose
meanings have changed therefore overlaps historical analysis.
It arises out of such Latin maxims as Animus hominis est
anima scripti. Intention is the soul of an instrument. 3 Bulst.
67.
3. Functional. Also called structural. Decision based on
analysis of the structures the law constituted and how they are
apparently intended to function as a coherent, harmonious
system. A Latin maxim is Nemo aliquam partem recte
intelligere potest antequam totum perlegit. No one can
properly understand a part until he has read the whole. 3 Coke
Rep. 59.
4. Doctrinal. Decision based on prevailing practices or opinions
of legal professionals, mainly legislative, executive, or judicial
precedents, according to the meta-doctrine of stare decisis,
which treats the principles according to which court decisions
have been made as not merely advisory but as normative.
Some Latin maxims are: Argumentum �simili valet in lege.
An argument from a like case avails in law. Coke, Littleton,
191. Consuetudo et communis assuetudo ... interpretatur
legem scriptam, si lex sit generalis. Custom and common
usage ... interpret the written law, if it be general. Jenk. Cent.
273. Cursus curi�est lex curi� The practice of the court is
the law of the court. 3 Buls. 53. Judiciis posterioribus fides
est adhibenda. Credit is to be given to the latest decisions. 13
Coke 14. Res judicata pro veritate accipitur. A thing
adjudicated is received as true. Coke, Littleton, 103.
5. Prudential. Decision based on factors external to the law or
interests of the parties in the case, such as the convenience of
overburdened officials, efficiency of governmental operations,
avoidance of stimulating more cases, or response to political
pressure. One such consideration, avoidance of disturbing a
stable body of practices, is also the main motivation for the
doctrinal method. It also includes such considerations as
whether a case is "ripe" for decision, or whether lesser or
administrative remedies have first been exhausted. A Latin
maxim is Boni judicis est lites dirimere. The duty of a good
judge is to prevent litigation. 4 Coke 15.
6. Equitable. Also called ethical. Decision based on an innate
sense of justice, balancing the interests of the parties, and what
is right and wrong, regardless of what the written law might
provide. Often resorted to in cases in which the facts were not
adequately anticipated or provided for by the lawgivers. Some
scholars put various balancing tests of interests and values in
the prudential category, but it works better to distinguish
between prudential as balancing the interests and values of
the legal system from equitable as balancing the interests and
values of the parties. It arises out of the Latin maxim, �uitas
est perfecta qu�am ratio qu�jus scriptum interpretatur
et emendat; nulla scriptura comprehensa, sed sola ratione
consistens. Equity is a sort of perfect reason which interprets
and amends written law; comprehended in no code, but
consistent with reason alone. Coke, Littleton, 24.
7. Natural. Decision based on what is required or advised by
the laws of nature, or perhaps of human nature, and on what is
physically or economically possible or practical, or on what is
actually likely to occur. This has its origin in such ancient Latin
maxims as: Jura natur�sunt immutabilia. The laws of
nature are unchangeable. Jacob. 63. Impossibilium nulla
obligatio est. There is no obligation to do impossible things.
D. 50, 17, 185. Lex non cogit ad impossibilia. The law does
not compel the impossible. Hob. 96. Lex neminem cogit ad
vana seu inutilia peragenda. The law requires no one to do
vain or useless things. 5 Coke 21. Legibus sumptis
desinentibus, lege natur�utendum est. Laws of the state
failing, we must act by the law of nature. 2 Rol. Rep. 98.
Of these, only the first three, textual, historical, and functional, are methods
of interpreting or constructing the written constitution of government, and the
historical and functional methods may be more a matter of construction than
interpretation. The last, natural, is construction (not interpretation) of the
unwritten constitution of nature, or the unwritten constitution of society,
which form a hierarchy of authority, with the constitution of nature superior to
the constitution of society, and the constitution of society superior to the
written constitution of government. The doctrinal, prudential, and equitable
methods are not interpretion or construction of any of these constitutions,
although judges often claim they are. There is an misguided tendency among
modern judges to misrepresent what are essentially prudential or equitable
decisions as constitutional constructions. Too many lawyers are complicit in
this by casting what are essentially prudential or equitable arguments into
constitutional terms. There is nothing inherently wrong with making prudential
or equitable decisions. The U.S. Constitution confers both law and equity
jurisdictions on federal courts, as do the state constitutions. The problem
comes with treating such decisions as establishing precedents, especially
binding ones. It is one thing to treat a decision as a precedent that clarifies
some ambiguity in the constitution, but quite another to essentially insert a
prudential or equitable decision into the constitution as a kind of amendment.
Such decisions must not conflict with constitutions or constitutional statutes,
but often do. Doctrinal and prudential decisions are more troublesome. The
doctrinal method may be compatible with the written constitution of government
if it merely involves clarifications of ambiguities in the original text, but
not when those doctrines depart from original legal understanding, as they
sometimes do.[1] The prudential method may be justifiable as necessary to handle
large caseloads, but often neglect to render justice in particular cases,
especially when they involve avoidance of controversy rather than a desire to
settle all issues brought before the court.
Within these methods, we can, by study of the writings of the
Founders, and the writings they read, elicit such principles for
interpreting or constructing the Constitution for the United States as the following:
1. The Constitution is the written document. Although it may
be considered to include the understandings of its words as of
the time of ratification, it does not include the subsequent body
of practices or precedents upon which constitutional decisions
might be based, which may or may not be consistent with it, or
authorized by it. The written document refers to itself as "this
Constitution", and provides for only four methods by which it
may be amended, all of which apply only to the written
document.
2. The authority for provisions of the Constitution is the
ratifications and state admissions. Current consent or
acquiescence, or lack thereof, to the Constitution or any
practice, does not affect the original constitutive acts, and has
no authority, unless expressed through adoption of
amendments as provided in Article V.
3. Provisions of the Constitution are mutually consistent.
There are no internal logical contradictions, except that a
provision of an amendment inconsistent with a previous
provision supersedes that provision.
4. None of the words are without force and effect, except those
superseded by amendments, unless such amendments are repealed.
Except for the statement of purpose in the preamble, every word was
intended by the Framers to be legally normative, and not just
advisory, declaratory, aspirational, or exhortatory. Verba intelligi
ut aliquid operantur debent. Words should be interpreted to give
them some effect.
5. Rights and powers are complementary. Every right
recognized by the Constitution is an immunity, that is, a right
against a positive action by government, and is equivalent to a
restriction on delegated powers. Conversely, every delegated
power is a restriction on immunities. An immunity may be
expressed either as a declaration of the right, or as a restriction
on powers.
6. There are no redundancies within the original
unamended Constitution. However, amendments may be
alternative ways of expressing equivalent content in the original
unamended Constitution or previous amendments. More
specifically, the Bill of Rights added no new content not
implicit in the original unamended Constitution, except the
twenty dollar rule of the Seventh Amendment.
7. The Constitution was intended to define a functionally
complete and harmonious system. That does not mean,
however, that all powers anyone might think the nation or any
branch, level, office or department should have, were actually
delegated.
8. Original "intent" is functional, not motivational. The
private motives of the Framers or Founders are irrelevant and
largely unknowable, and likely to have been diverse. The
common law rule of interpretation understood by the Founders
was to discern the functional role of elements of the law, not
the private purposes of the lawgivers.
9. The ratification debates are the best evidence of
original understanding. The arguments of those opposed to
ratification are not just the positions of the losers in the
debates, which some might dismiss as not indicative of original
understanding. As the debates proceeded, understandings
evolved and clarified, and positions changed. Most opponents
were satisfied by adoption of a Bill of Rights, and by
assurances by the proponents concerning how the words of
the Constitution would be interpreted, and those assurances
must be considered part of the original understanding. That
means that a construction to which the more significant
"anti-federalists" would object is almost certainly incorrect.
10. Powers are narrow, rights broad. The entire theme and
tenor of the ratification debates was that delegated powers
were to be interpreted as strictly as possible, consistent with
the words, and rights as broadly as possible, with the
presumption in favor of the right, and the burden of proof on
those claiming a power. Potestas stricte interpretatur. A
power is strictly interpreted. In dubiis, non pr�umitur pro
potentia. In cases of doubt, the presumption is not in favor of
a power.
11. Delegated powers cannot be subdelegated. The U.S.
Constitution vests all legislative powers in Congress, and all
judicial powers in the Supreme Court and inferior courts,
except as specifically expressed. Executive branch officials
may subdelegate but must remain responsible for the actions of
their subordinates. There can be no authority exercised that is
not accountable through constitutional officials.Delegata
potestas non potest delegari. A delegated power cannot be
delegated. 9 Inst. 597.
12. The power to regulate is not the power to prohibit all
modalities of something. It is only the power to issue
prescriptions to "make regular", enforceable only by
deprivations of property or privileges, not of life, limb, or
liberty. There must always be some modality that is not
prohibited.
13. Implied powers are only to "carry into Execution" an
expressed power and not to do whatever is necessary to
achieve the intent for which a power might be exercised.
Delegation of a power is delegation of the right to make a
certain kind of effort, not to do whatever is necessary to get a
desired outcome.
14. There can be no common law crimes. They are in conflict
with the prohibitions on ex post facto laws and bills of
attainder.
15. Rights may not be disabled or unduly burdened by
legislative or executive process. "Due" process is judicial
only, involving the granting of a petition to disable a right of the
defendant, with the burden of proof on the plaintiff or
prosecutor, and with the defendant having at least those
minimum protections that prevailed during the Founding. with
similar disablements having similar standards of proof and
protection.
16. There is no right without a remedy. Ubi jus ibi
remedium. There must always be an accessible forum in
which a complainant has oyer and terminer for any petition.
17. The Founders were learning. "Original meaning" is not just about what the Founders consciously meant at the moment of ratification, but includes what they would discover with further study of the legal tradition they invoked in the words they chose. Thus, they referred to authors like Blackstone and Coke when they were unsure what they meant, and so must we.
18. Early practice indicative but not dispositive. Early practice by the Founders may provide evidence of their aspirations in the words they chose, but should not be regarded as perfect expressions of their intent. Practice can represent compromise with practical concerns and may lag behind the ideals contained in the words.
19. Mental models of mental models. Each of us has a mental model of the world that includes a model of the mental models others have of the world. Communication is possible only to the extent that our mental models of the mental models of others are somehow accurate or congruent. When a lawgiver issues a law, a command to others for future compliance, he is relying on others to understand his words the way he does, and those others are relying on him to use words with the meanings they have for them. But words are an imperfect way to convey meanings, and if the recipient of the command cannot interrogate the lawgiver for his meaning, he must try to improve his mental model of the lawgiver's mental model by such means as learning to accurately predict what the lawgiver will write about matters the recipient has not previously read.
20. Find the right level of abstraction. It was common for the Founders to use somewhat more concrete words to mean broader principles. Thus, "press" or "arms" is not limited to the technology of the time, but refers to the general function they served. "Militia" does not mean merely those legally obliged to respond to an official call-up, but defense activity generally.
A more complete discussion of these principles is best done by
reference to Landmark Court Decisions.